(Per Mr.Dhanraj Khamatkar, Hon’ble Member)
(1) This appeal No.1113/04 takes an exception to the order dated 21/05/2004 passed by the District Forum, Satara in Consumer Complaint No.150/03.
(2) The facts leading to this appeal can be summarized as:-
In the year 1996, the opponent No.1 company had announced a Time Share Scheme. In month February 1996, the original complainant/respondent accepted the membership of the opponent/appellant company by making initial payment. The complainant/respondent was issued a membership certificate on 23/03/1996 wherein the customer number was given 79867, type of time share is H.T.S.5, and allotted holiday resort at Yelgiri, period of classification seasonal, apartment type is regular and week No. is 47. The membership period was from 1997 to 2095 and date of issuing the membership is 23/03/1996. The complainant had paid total amount of `52,500/- to the opponents/appellants from 29/02/1996 to 30/11/1996. Accordingly, the complainant/respondent planned her holiday tour to Yelgiri and requested to allot holiday resort at Yelgiri or at any company’s resort near Mysore, Banglore, Ooti, but the officer of the appellant company refused the request. The appellant/original opponent communicated that the desired places are full and will not be available. As regards the Yelgiri resort, the opponent / appellant company’s officer informed that the construction at Yelgiri is not completed. The complainant/respondent vide letter dated 05/06/1999 informed the opponents/appellants her dissatisfaction with the company service and intimated her decision to withdraw from the membership and requested to return the membership amount vide letter dated 07/06/1999.
(3) The opponent company informed to the complainant/respondent that as per Clause 5.5 of the agreement, the membership cannot be cancelled. The opponents/appellants also suggested the complainant/respondent to opt for 18% compensation as per the terms and conditions of the agreement. However, though the complainant/respondent requested, she has not received compensation as per agreement and also not provided accommodation at Yelgiri Holiday Resort. Again, the opponents/appellants informed the complainant that the construction at Yelgiri Resort has yet not completed and the complainant/respondent can utilize her membership at Yercand by making additional payment of `14,000/-. However, the complainant vide her letter dated 22/12/2002 asked for damages @18% p.a. as per the Clause 4.2 of the agreement. The complainant/respondent issued legal notice, however the opponents/appellants failed to take any cognizance of the notice and pay compensation. Hence, the complainant/respondent had filed consumer complaint praying to direct the opponents/appellants to make payment of compensation on the amount of `52,500/- from 23/03/1996 till the date of filing of the complaint which amounts to `1,16,864/-. The complainant also demanded future interest @24% p.a. and compensation of `1 lac for mental, physical and financial losses.
(4) The opponents have filed their written version contesting the complaint filed by the complainant/respondent. The opponents mainly contested the complaint contending that the complainant had purchased time share property and as per the judgements of National Commission, it is not the consumer dispute. They have denied all the allegations and averments in the complaint. They further contended that they are providing their best of services to their members. They further contended that they had offered the complainant holiday resort at different locations owned by the opponent, however the complainant had not availed. They have further contended that there is no negligence or deficiency in their services.
(5) The District Forum after going through the pleading of both the parties and evidence adduced has passed order dated 21/05/2004 allowing the complaint and directed the opponents to pay an amount of `70,636/- towards compensation and interest @18% p.a. on amount of `52,500/- from 22/05/2004 till the date when the complainant will get stay at Yelgiri resort and `3,500/- towards mental agony and `1,500/- towards cost of proceeding. It is against this order, the present appeal is filed.
(6) The matter was on sine-die list. The matter was placed before us on 02/08/2011. We directed the office to issue intimation to both the parties. Accordingly, intimation was issued on 16/08/2011. On the date of hearing, both the parties remained absent. Matter being pretty old, we proceeded with the matter on merits.
(7) Admittedly, the complainant/respondent accepted the membership of time share of the opponents/appellants by making initial payment and the appellants issued membership certificate, the customer No. of the respondent is 79867, type of time share is H.T.S.5, and allotted holiday resort at Yelgiri, period of classification seasonal, apartment type is regular and week No. is 47. The membership period is from 1997 to 2095. The respondent paid an amount of `52,500/-. So it is clear that the appellant had accepted the respondent as its member. It is also on record that the respondent planned her holiday at Yelgiri, however she could not get the Yelgiri Resort because the construction was not completed. The respondent has also requested for the resort near Mysore, Bangalore, Ooti, however the appellants have refused on the ground that the desired resorts are full and will not be available. The respondent had expressed her dissatisfaction and intimated her decision to withdraw from the membership and asked for the return of membership amount.
(8) It is also on record that the appellant have informed to the respondent that membership cannot be cancelled as per clause 5.5 of the agreement and fairly accepted that the construction of Yelgiri Holiday Resort is delayed. They also suggested to opt for 18% compensation as per terms and conditions of the agreement. It is also on record that the respondent had opted for 18% compensation, however the appellants have not paid the same and not provided accommodation at Yelgiri Holiday Resort. The appellant further informed to the respondent that the construction of Yelgiri Resort is not completed and the complainant can utilize the membership at Yercand by making additional payment of `14,000/- vide letter dated 12/07/2002, the respondent has not accepted the offer and asked for the damages 18% as per the clause 4.2 of the agreement and hence respondent had to file consumer complaint.
(9) The appellants have quoted authorities from the National Commission judgement in – Dalmiya Resort International V/s. Dr.Ranjan Gupta and Punjab Tourism Development Corporation Vs.Kirit P. Doshi reported in 1997 and contended that purchase of time share in immoveable property is not consumer dispute. As against this, the respondent relied on decision of the National Commission reported in III (2003) CPJ 154 (NC) – T.V. Sundarason & anr. Vs. Sterling Holiday Resorts India Ltd., wherein the Hon’be Nationa Commission discussed the judgements of Dalmiya Resort International V/s. Dr.Ranjan Gupta, Lucknow Development Authority Vs.M.K.Gupta, and Hon’ble Supreme Court judgement in K.N.Sharma V/s. Toshali Resorts International & anr. And Punjab Tourism Development Corporation Vs.Kirit P. Doshi and held that even where immoveable property is involved, there can be deficiency in service within the Consumer Protection Act, 1986. The apex court in its order dated 10/01/2003 in Civil Appeal No.120/03 – K.N.Sharma V/s. Toshali Resorts International & anr. had taken a view that even in respect of immoveable property question which is to be examined is whether there is any service to be rendered in relation thereto and whether the complaint made was in respect of the same. In view of the Apex court decision in K.N.Sharma V/s. Toshali Resorts International & anr dispute pertaining to property time share is a consumer dispute.
(9) The District Forum after taking into consideration the facts of the case and referring the law settled by the apex court has passed order. We do not find any infirmity in the order passed by the District Forum. The appeal is without any substance or merit. The order passed by the District Forum is just and fair. We hold accordingly and pass the following order.
ORDER
1) Appeal is dismissed.
2) Order of the District Forum, Satara dated 21/05/2004 is hereby confirmed.
3) Inform the parties accordingly.
Pronounced on 23rd September, 2011.
